More Lawyers Are Working
Before They're Clerking

By

Annelena Lobb

Updated Feb. 28, 2006 12:01 a.m. ET

When he was at the University of Pennsylvania Law School, Toby Stern, like many students, knew he wanted a federal judicial clerkship, a position typically considered a prestigious coda to a legal education.

But Mr. Stern had gone directly from college to law school, and wanted a taste of the real work-a-day world before clerking. So he applied for a clerkship with Manhattan federal district-court judge Thomas Griesa that would begin after he had completed a year of work as an associate at law firm Paul, Weiss, Rifkind, Wharton & Garrison in New York. He is currently clerking for Judge Griesa.

Data on the subject isn't kept by the Administrative Office of the U.S. Courts -- but anecdotal evidence from judges, clerks, and law-school placement officers shows that a small but growing number of law clerks are following Mr. Stern's pattern and taking clerkships after working. Some judges actually prefer to hire clerks with work experience, and a recent change to rules on hiring students is facilitating the shift.

Whatever the reason, by most accounts, this is okay with many applicants. Clerks with work experience under their belts earn more than clerks coming straight out of law school, and for many, a clerkship can provide a welcome intermission in an otherwise highly tracked career.

"I think hiring experienced lawyers is, quite frankly, the new paradigm, especially in busy district courts," says Judge William H. Pauley, a federal district court judge in Manhattan. "I participate in that trend fully." He now has an online posting for a clerk that says only candidates with at least two years' work experience should apply.

Traditionally, judges have preferred recent graduates because they are well-acquainted with the type of research and writing a clerkship requires. For students, federal clerkships have long been coveted both for the prestige they lend a fledgling resume as well as for the experience itself: Judicial clerks investigate issues within cases on a judge's docket and, in many instances, write drafts of opinions.

One factor behind the interest in seasoned clerks -- administratively, they're easier to hire, thanks to the Federal Law Clerk Hiring Plan, which was announced in the fall of 2002. The plan, which judges are not technically obliged to follow, disallowed students from postmarking applications until the Tuesday after Labor Day of their third year, ensuring that no one could gain an advantage by making contact with judges before everyone else. Although the plan balanced the playing field, in much-coveted districts, courts were forced to process an avalanche of mail to find the right candidates. But the plan doesn't apply to practicing lawyers, who can be hired throughout the year.

Furthermore, trial courts are increasingly busy, and cases are taking longer to resolve. The number of cases filed in both civil and criminal courts each increased by about 10% from March 2001 to March 2005; during the same period, the number of civil cases and criminal cases still pending at the end of the year rose by 12.9% and 41.3%, respectively. Appeals rose by 16.7% in the same period.

Some judges think that a clerk with work experience helps him or her work more efficiently. "The conventional wisdom is that clerks with one to two years' experience have refined their writing skills further," says Judge Algenon Marbley, a district-court judge in the southern district of Ohio. Judge Marbley has no particular hiring policy, but has hired both students and experienced lawyers as clerks. Clerks who have spent time in private practice often have a greater understanding of the litigation and adversarial processes than do students fresh from school, adds Judge Pauley.

(Justice Alito recently broke with the U.S. Supreme Court's tradition of hiring clerks one or two years removed from law school when he hired 37-year-old Adam Ciongoli from the law department at Time Warner. It has been reported that politics may have had a role in the Ciongoli hire -- he was a senior adviser to former Attorney General John Ashcroft and had other conservative credentials -- but politics don't seem to have much of a role in the hiring shift at the lower federal court levels.)

Many young lawyers seem to like the new model. Like Mr. Stern, some are anxious to get their feet wet after going straight from college to law school. "There's some anxiety that comes with having a job for the first time, as well as with working at a big firm," says Justin Letts, a clerk for Judge Marbley. "Having a clerkship lets you leave on good terms, but with knowledge of the kind of lifestyle you can have." Mr. Letts worked at Jones Day's Columbus office for a year before starting his clerkship.

Furthermore, law-firm starting salaries -- as high as $145,000 at some firms in New York -- probably look far more attractive to someone saddled with as much as seven years' worth of educational debt than do entry-level clerkship base salaries, currently around $46,000, excluding cost-of-living adjustments. Big-firm careers are often highly strenuous, with new associates working notoriously long hours. A clerkship, while still demanding, tends to have somewhat better work hours and can take someone out of a regimented career for a stretch.

"Having worked at a firm, I did have a different understanding of what it's like to work hard," says Kira Antell, now an associate at Willkie, Farr & Gallagher in New York. Ms. Antell clerked for Judge Richard M. Berman of the Southern District of New York after working as an associate at King & Spalding.

Plus, the clerkship pay is much greater once a clerk has spent time working elsewhere. For instance, a clerk at the very highest pay grade, typically someone who has had up to four years' legal work experience and two years' experience as a federal law clerk, can earn up to about $100,000 plus locality pay. Many large firms also pay a clerkship bonus, the going rate of which is between $10,000 and $15,000 for each year of a clerkship, according to a survey conducted last year by the National Association of Legal Professionals. Returning lawyers are often re-inserted with their associate classes, so no time is lost climbing the firm ladder.

That said, firms have mixed feelings about associates' leaving to clerk. Andy Urban, a co-managing partner at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo in Boston, says his firm doesn't seem to mind: "We encourage [young associates] to do that," he says. "A clerkship is an excellent experience and feeds their skill sets."

But the firms aren't always thrilled about it. "I wouldn't say it's encouraged," says Benjamin Stapleton, a partner at New York's Sullivan & Cromwell. According to Mr. Stapleton, a clerkship interrupts an associate's development at the firm. "It's not a death knell, but it's not necessarily our preferred route of development." Nevertheless, Mr. Stapleton says that the firm does and will continue to try to accommodate associates who want to clerk.

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